SINGLE TRIBUNAL FOR INTER-STATE WATER DISPUTE

Inter-state water disputes are different from other interstate disputes. The Constitution, under Article 262, bars the jurisdiction of the Supreme Court or any other court over inter-state water disputes. The Inter-state (River) Water Disputes Act 1956 provides for the resolution of disputes. Under its provisions, the disputes are to be adjudicated by ad-hoc, temporary and exclusive tribunals.

Provisions of Inter State Water Dispute Act (1956)

The Inter-State river water disputes are governed by the Inter-State Water Disputes Act, 1956.

As per the current provisions of the 1956 Act, a tribunal can be formed after a state government approaches Union Government with such request and the Centre is convinced of the need to form the tribunal.

This act was further amended in 2002 to include the major recommendations of 'The Sarkaria Commission'.

The amendments mandated a one year time frame to setup the water disputes tribunal and also a 3 year time frame to give a decision.

This system has had some successes, especially with the first generation of tribunals set up soon after independence-to adjudicate on the Krishna, Narmada and Godavari rivers.

But in general, it has struggled to bring warring parties on the same page and offer equitable solutions.

Procedure for Adjudication of Disputes

When a Tribunal has been constituted under section 4, the Central Government shall, subject to the prohibition contained in section 8, refer the water dispute and any matter appearing to be connected with, or relevant to, the water dispute to the Tribunal for adjudication.

The Tribunal shall investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the matters referred to it within a period of three years.

Provided that if the decision cannot be given for unavoidable reason, within a period of three years, the Central Government may extend the period for a further period not exceeding two years.

If, upon consideration of the decision of the Tribunal, the Central Government or any State Government is of opinion that anything therein contained requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, the Central Government or the State Government, as the case may be, within three months from the date of the decision, again refer the matter to the Tribunal for further consideration, and on such reference, the Tribunal may forward to the Central Government a further report within one year from the date of such reference giving such explanation or guidance as it deems fit and in such a case, the decision of the Tribunal shall be deemed to be modified accordingly:

Provided that the period of one year within which the Tribunal may forward its report to the Central Government may be extended by the Central Government, for such further period as it considers necessary".

If the members of the Tribunal differ in opinion on any point, the point shall be decided according to the opinion of the majority.

List of Existing Water Dispute Tribunals

No

Name of Tribuna

States concerned

1.

Godavari Water Disputes Tribunal

Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh & Odisha

2.

Krishna Water Disputes Tribunal -I

Maharashtra, Andhra Pradesh, Karnataka,

3.

Narmada Water Disputes Tribunal

Rajasthan, Madhya Pradesh, Gujarat and Maharashtra

4.

Ravi & Beas Water Tribunal

Punjab, Haryana and Rajasthan

5.

Cauvery Water Disputes Tribunal

Kerala, Karnataka, Tamil Nadu and Puducherry

6.

Krishna Water Disputes Tribunal -II

Karnataka, Telangana, Andhra Pradesh and Maharashtra

7.

Vansadhara Water Disputes Tribunal

Andhra Pradesh &Odisha

8.

Mahadayi Water Disputes Tribunal

Goa, Karnataka and Maharashtra

The Centre has already received a request to set up a tribunal as a new dispute has emerged between Odisha and Chhattisgarh over Mahanadi river water.

Issues with Existing Water Dispute Act

There are three main problems with the existing system.

Protracted proceedings and extreme delays in dispute resolution.

Opacity in the institutional framework and guidelines that define these proceedings.

Ensuring compliance.

The delays happen for a variety of reasons at every stage of the process.

Sometimes, the Centre takes years to decide whether a matter needs to be heard by a tribunal in the first place.

Example, the Godavari and Krishna disputes started around 1956 but the matter was referred to a tribunal only in 1969.

After the tribunal has been formed, it again takes many years to pronounce its award-it took nine years from reference in the case of the Narmada tribunal.

Another reason for delay is the requirement that the Centre notify the order of the tribunal to bring it into effect; this took three years for the Krishna award.

Now, however, the Centre has proposed that the awards will be notified automatically by the tribunal.

Also, India's messy federal polity and its colonial legacy sets the stage for the third problem of non-compliance wherein state governments have sometimes rejected tribunal awards.

For example, the Punjab government played truant in the case of the Ravi-Beas tribunal.

Features of the Proposed Amendment

a) Formation of Single Tribunal for dispute settlement

The National Water Policy 2012 proposed setting up of a permanent tribunal to replace multiple water tribunals working in the country.

Its revival now shows the non-political nature of the idea justifying serious consideration and approval.

The amendment will be introduced early during the budget session of Parliament, which begins in January 2017.

b) Centralized data collection centre

Apart from the tribunal, the proposed amendment to the 1956 law also seeks to create an agency to collect and maintain all relevant water data, like rainfall, water flow and irrigation area, in each of the river basins of the country. Collection of data is usually the first exercise in resolution of water disputes. A specialised agency would ensure that this kind of data is always available, in updated form, and does not need to be collected after a dispute has arisen.

c) Setting up of Disputes Redressal Committee

The proposed amendment provides for setting up a Disputes Redressal Committee comprising experts before referring a dispute to the new permanent tribunal.

It is hoped that most of the disputes would be settled at the committee level itself, if the committee has access to reliable and updated data.

The committee would also serve as the technical advisor to the tribunal.

Under the current law, the tribunals have three years to give their awards.

In order to give more teeth to the Tribunal, it is proposed that whenever it gives order, the verdict gets notified automatically. Until now, the government required to notify the awards, causing delay in its implementation.

d) Setting up of National Water Commission

The government has proposed a new National Water Commission (NWC) in place of the existing Central Water Commission (CWC) and Central Ground Water Board (CGWB).

One of the departments of the NWC is supposed to act as a comprehensive and specialized water data bank.

It's an agency to collect and maintain all relevant water data, like rainfall, water flow and irrigation area, in each of the river basins of the country.

Collection of data is usually the first exercise in resolution of water disputes.

A specialized agency like NWC would ensure that this kind of data is always available, in updated form, and does not need to be collected after a dispute has arisen.

Analysis

Unification of water tribunals seems necessary as river water is a national resource to be shared by all States.

In federal constitutions, there are three types of resolving inter-State disputes:

States entering into inter-State pacts

Accepting court decisions

Giving paramount power to the federal government to resolve claims

A rare case of cooperation was recently presented by Telangana and Maharashtra States signing a pact for construction of major irrigation projects on the Godavari and its tributaries thus ending decades' old dispute.

On the other hand, unilateral repudiation of inter-State agreement on Sutlej-Yamuna Link Canal by the Punjab Assembly in March 2016 against the order of the Supreme Court to maintain status quo is nothing short of a challenge to the judiciary.

Tamil Nadu and Karnataka present a typical model of the highest level of non-cooperation in sharing the Cauvery river water.

Water is a state subject but the "regulation and development of inter-state rivers and river valleys… in the public interest" is on the Union list.

Given the number of ongoing inter-State disputes and those likely to arise in future, it may be difficult for a single institution with a former Supreme Court judge as its chairperson to give its ruling within three years.

Secondly, its interlocutory orders as well as final award are likely to be challenged in the Supreme Court.

The idea of a Dispute Resolution Committee, an expert body that will seek to resolve inter-State differences before a tribunal is approached, will prove to be another disincentive for needless litigation.

A positive feature of the proposed changes is that there will be an expert agency to collect data on rainfall, irrigation and surface water flows.

This acquires importance because party-States have a tendency to fiercely question data provided by the other side.

A larger and more significant downside to any adjudicatory framework is the refusal or reluctance of parties to abide by judicial orders.

Water disputes have humanitarian dimensions, including agrarian problems worsened by drought and monsoon failures.

The Central government must keep these factors in mind when setting up the proposed tribunal.

A robust institutional framework-and a transparent one to ease state and public buy-in is a must.

Without that cooperative approach, India's water dispute resolution is unlikely to see much improvement.